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WILMA M. KRENZELAK v. CHESTER KRENZELAK AND STANLEY KRENZELAK (12/10/82)

filed: December 10, 1982.

WILMA M. KRENZELAK, APPELLANT,
v.
CHESTER KRENZELAK AND STANLEY KRENZELAK



No. 1042 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Washington County, at No. 7810, in Equity, Book 45, Pg. 123.

COUNSEL

Robert Ceisler, Washington, for appellant.

W. Bryan Pizzi, II, Washington, for appellees.

Cercone, President Judge, and Beck and Montemuro, JJ.

Author: Cercone

[ 307 Pa. Super. Page 501]

Wilma M. Krenzelak appeals the order of the lower court sustaining appellees' preliminary objections to her complaint in equity. The issue for our determination is the applicability of the new Divorce Code of Pennsylvania,*fn1 (hereinafter referred to as "the Code") to a conveyance for no monetary consideration by appellee Chester Krenzelak to his son by a previous marriage, appellee Stanley Krenzelak on March 25, 1980. This property is a seventy-four acre tract located in Morris Township, Washington County, and was purchased by Chester on January 29, 1968, during his marriage to Wilma. At all times the property was in Chester's name only.

Appellee-husband filed an action in divorce against appellant-wife in April 1978, and she filed against him in April, 1979. The transfer of property from father to son, which is the subject of this appeal, occurred on March 25, 1980. Thereafter, the Code went into effect on July 1, 1980. Under Section 103 of the Code, appellant petitioned the Court in January 1981 to have her existing divorce action governed by the provisions of the new Code.*fn2 The petition was unopposed, and permission was granted to proceed under the Code. Appellant then amended her original complaint in divorce to ask for equitable distribution and other appropriate relief. In March of 1981, a suit in Equity was

[ 307 Pa. Super. Page 502]

    filed to set aside the conveyance of the property from the appellee-husband to appellee-son. The complaint alleged that the property transfer was made solely to deprive appellant of her right to distribution of marital property. Appellees filed Preliminary Objections to the Complaint in the form of a demurrer arguing that appellant failed to state a cause of action upon which relief may be granted because at all time the property was owned only by appellee-husband, individually. The lower court sustained the Preliminary Objections. It reasoned that the new Divorce Code could not be applied retroactively and thereby refused to characterize the property as "marital property". The court's characterization rendered this property not subject to equitable distribution upon termination of the marriage. Because we feel the instant situation is controlled by the recent case Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982), we reverse and remand for proceedings consistent with this opinion.

The Bacchetta case confronted our Supreme Court with the issue of whether the new Divorce Code subjected property acquired during the marriage of the parties, but before the effective date of the Code, to be classified as marital property for purposes of equitable distribution upon termination of the marriage. The Court, in a 4-3 decision, opinion by Justice Roberts, found direction from the Legislature that all property acquired during the marriage of the parties shall be subject to the equitable distribution provision of the Divorce Code. The Court further concluded that this application was constitutionally permissible.

Section 103 of the Code states that all provisions of the Code shall apply to those actions governed by the Code. It provides:

The provisions of this act shall apply to all cases, whether the causes for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded ...


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